Background

States faced an unpleasant prospect in 1990-that their permit and registration
programs for carriers of hazardous materials would be wiped out—preempted by a
potentially weaker federal law. At the urging of the trucking industry, which
wanted to escape the burden of over 80 programs in 42 states, Congress was on the
verge of doing away with state programs and replacing them with a
one-size-fits-all federal program. Safety through uniformity was the favored
approach. To protect the state programs, state negotiators made the best deal
available at the time. They agreed to a working group of state officials that
would craft uniform forms and procedures for hazardous materials transportation
permits and registration using the best practices of existing state programs.
However, part of the deal was that the new state-developed uniform program would
preempt existing state programs. It's essentially preemption on state terms to
save an existing and important area of state regulation.

The Uniform Program was recommended by a Congressionally mandated (49 USC 5119) working group of
state and local government officials that was organized and staffed by the National Conference of State Legislatures (NCSL) and the
National Governors Association. The recommendation
reflects extensive review and consideration of state and local programs, as well as
industry and environmental concerns. The Uniform Program developed by the working group
effectively balances the health and safety concerns of state officials with the
uniformity elements sought by industry.

The Uniform Program

The essence of the program is a base state system whereby a motor carrier of
hazardous materials obtains credentials in the state the carrier travels the most
miles. These credentials are good in all participating jurisdictions. A benefit
of the program, if adopted, is that a state can now more carefully evaluate fewer
trucking companies because the burden is spread among the member states. States
may choose to regulate all hazardous materials or a subset like hazardous waste.
The program consists of three components-registration, permitting, and
hazardous/radioactive waste disclosure. A governing board, made up of
participating states, oversees the program to ensure consistent program standards
and to build trust among states.

The four states (Minnesota, Nevada, Ohio and West Virginia) that pilot tested
the reciprocal program in 1994-95 found it to be administratively workable and an
effective way to improve safety. Safety is improved because trucking companies
find compliance easier when rules and regulations are more similar state to
state. In addition, the administrative burden of applicant companies is cut since
one application will satisfy all participating states. Michigan and
Oklahoma have also joined the program.

Additional States Needed

More states are needed to strengthen the reciprocity aspects of the
program and to create a national network. Several state legislatures have studied the
program for possible enactment. Since 1994, NCSL has officially supported the Uniform
Program, meaning three-fourths of states represented by NCSL have agreed to this
position. It reads:

"NCSL supports the recommendations of the Alliance for Uniform Hazmat
Transportation Procedures to institute federal standards to facilitate uniformity
in state permitting and registration requirements. These recommendations reflect
extensive review and consideration of state and local programs, as well as
industry and environmental concerns. The consensus recommendations accommodate,
to the extent possible, specific public and private sector concerns. NCSL
supports the work done and the program itself. NCSL urges the U.S. Department of
Transportation to provide adequate incentives to states to participate in the
program, but a state should not be forced into participation by either the
Department or Congress."

Federal Role

At the federal level, the Federal Motor Carrier Safety Administration is
charged with implementing the federal rule for this program. It must implement
the Uniform Program recommended by the working group if 26 states adopt it, but
they have indicated a lower threshold of 18-20 might be acceptable for moving
ahead with a rule. This agency is generally supportive of the Uniform Program and
is closely watching what develops in the states. FMCSA is currently funding the
centralized aspects of the Uniform Program.

Fees

The recommended program did not mandate a fee structure-states can still
assess fees as they decide as long as the revenue is used for hazardous materials
transportation activities and they don't interfere with interstate commerce. Fees
must also meet the fairness test under the dormant commerce clause found in
Evansville (92 S. Ct. 1349) (1972). This test says a fee is fair if it is
based on a fair approximation of use of the state facilities, is not excessive in
relation to benefits conferred, and does not discriminate against interstate
commerce. "Flat tax" fees assessed per vehicle or per trip per vehicle have been
preempted because they fail the "internal consistency" test of the commerce
clause as an undue burden on interstate commerce. Essentially, these fees are not
equitable to nationwide carriers.

To address these fee issues, the Alliance has recommended a fee structure that
double apportions fees based on miles and hazmat activity.

Conclusion

In closing, this program is recommended because it contains the best existing
practices in the states to ensure safety, it preserves state fee authority, it's
been proven to work in the five participating states, and it staves off
preemption by a one-size-fits-all federal program.